Appeal, No. 135, Jan. T., 1952, from decree of Orphans' Court of Berks County, 1951, File No. 21-793, No. 180, in re Estate of Mary A. Heizmann O'Reilly, deceased. Decree affirmed.
Thomas A. Galbally, with him John J. Sullivan and George B. Balmer, for appellants.
Samuel B. Russell, with him Harold J. Ryan, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE BELL
Mrs. Mary E. Heizmann O'Reilly, whose trust estate is now being adjudicated, died March 1, 1904, a resident of Berks County, Pennsylvania. In her will she gave her daughter, Mrs. Forster, the income from a trust estate of approximately $57,000. for life, with a power to appoint the principal in and by her will. Mrs. Forster, the donee of the power, died domiciled in California, on June 4, 1950, leaving a will in which she made the following (relevant) provisions: Testatrix directed the payment of her debts and funeral expenses; then bequeathed to the Bishop of the Diocese of Los Angeles, $3,000. for masses for the repose of the souls of herself and her immediate family; made certain gifts to a friend, Emma E. Reiner; and then devised to her two cousins (who are also residuary legatees) all her undivided interest in certain real estate in Pennsylvania. She then provided as follows:
"Seventh: All the rest, residue and remainder of my estate of every kind and character and wheresoever
situate including*fn* that portion of my mother's said estate derived from my father, James A. O'Reilly, Esq., which was left in trust for my lifetime with the power of appointment, I give, devise and bequeath, in fee simple and absolutely, in equal shares, to the following: Saint Joseph's Seminary of Baltimore City, Maryland, a corporation created and existing under the laws of Maryland; 'St. Joseph's Home, Jersey City, N.J.', a corporation created and existing under the laws of the State of New Jersey; St. Joseph's Home for Homeless Boys, 16th and Allegheny Street, Philadelphia, Pennsylvania; Little Sisters of the Poor of Los Angeles, 2700 East First Street, Los Angeles, California and Missionary Sisters of the Sacred Heart, a California corporation, of Los Angeles, California.
"Eighth: In the event that the net amount of my estate for distribution, devised and bequeathed to charitable or benevolent institutions or in trust for charitable purposes, shall exceed one-third of the total amount of my estate, then I do hereby give, devise and bequeath all the remainder of my estate over and above said one-third and not otherwise devised or bequeathed herein, to my said cousins, Theodora Heizmann and Mary Heizmann, in equal shares, or, in the event of the death of either of them, then to the survivor of them."
The five charities claim that under the Seventh paragraph they are entitled absolutely and exclusively to the entire Pennsylvania trust fund which Mrs. Forster appointed to them, and that the Eighth paragraph applies only to Mrs. Forster's individual estate. They contend that their interpretation is fortified (a) by the circumstances surrounding testatrix at the time she made her will, and (b) by the principle that ...